IN THE CASE OF:  

		BOARD DATE:  16 July 2015  

		DOCKET NUMBER:  AR20150009042


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) (nonjudicial punishment (NJP)) from the restricted folder of his Official Military Personnel File (OMPF).

2.  The applicant states this NJP was given to him on pretense from his home unit when in fact he was TDY and the Soldier Support Institute (SSI) at Fort Jackson, SC had UCMJ authority over him at the time of the incident.  The incident also incurred because another Soldier was harassing him and then sexually harassing him by blowing a kiss less than 12 inches from his face. He was the only Soldier disciplined in the incident and feels as if he were punished wrongly for the incident.  He contends that he was coerced into signing the NJP because he was told it was a company grade suspended punishment that would not affect his career.  Well it has twice affected him and will continue to do so as long as it is in his file.  He requests that it be removed from his OMPF in its entirety due to the unknown future affect on his career and the pretense that the imposing command did not actually have UCMJ authority at the time of the incident.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as a staff sergeant, pay grade E-6.
2.  Orders 312-703, Headquarters, III Corps and Fort Hood, Texas, dated 
8 November 2010, directed the assignment of the applicant to the U.S. Army Recruiting Battalion Houston, Texas, with a reporting date of 20 December 2010.

3.  On or about 20 May 2013, the applicant was attached to Company B, Training Support Battalion, USA SSI, for the purpose of attending the Recruiting Center Commander's Course.

4.  On 23 May 2013, a form titled "Student Disposition" was completed wherein the applicant was identified as having wrongfully physically assaulted another Soldier.  He was administratively eliminated from the course of training and disenrolled by the commandant.

5.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 
28 May 2013, indicates that the applicant's company commander informed the applicant that he was suspected/accused of violating UCMJ Article 128 for assault.  It appears that the applicant elected to say nothing and did not want to be questioned.  There is no indication that he wanted a lawyer.  The form was signed.

6.  On 28 May 2013, seven DA Forms 2823 (Sworn Statement) were completed by Soldiers who saw or overheard the subject incident.  One of the statements was also from the assaulted Soldier who spoke about a conversation between them the day prior to the assault and about the assault itself.  All seven statements are consistent in their content concerning the applicant's discussion and/or actions with the assaulted Soldier.

7.  A DA Form 4856 (Developmental Counseling Form) dated 30 May 2013 indicates that the applicant was counseled by his company commander concerning his removal from the course of training due to his physical altercation with another Soldier.  He was informed that this type of behavior was unacceptable and not in keeping with the Army values and could lead to UCMJ action.  The applicant was further advised that he would not be rescheduled for the training and would not be considered for reclassification into military occupational specialty 79R (Career Counselor).  He was to return to his previous duties as a detailed recruiter until completion of his current tour of duty.  He was also informed to immediately call his career branch and tell them he was eligible for permanent change of station.  The applicant indicated his disagreement with the counseling and wanted to know if his one-year extension was still valid.  He also stated that he was briefed that UCMJ authority.  The commander stated he would continue to monitor the applicant's progress and provide any resources or assistance needed.

8.  On 27 June 2013, the applicant was informed by the company commander that he was considering whether he should be offered NJP for the following acts of misconduct:

* Violation of Article 128 Assaulting another Soldier by grabbing the collar of his Army camouflaged uniform
* Violation of Article 134 by communicating a threat

9.  On 27 June 2013, the applicant accepted the commander's offer of NJP rather than demanding trial by court-martial.  He requested an open hearing and did not want a person to speak on his behalf.  Additional matters in defense, mitigation and/or extenuation were not presented.  The applicant was found guilty of both charges.  His punishment included extra duty for 14 days (suspended) and restriction for 14 days (suspended).  The form does not provide any evidence of his desire to appeal the NJP.  The commander directed filing of the NJP in the restricted folder of his OMPF.  There is no evidence of a legal review of the NJP.

10.  Orders 014-0002, U.S. Army Installation Management Command, Fort Knox, KY, dated 14 January 2015 directed the applicant's reassignment to Fort Benning, Georgia, with a reporting date of 10 February 2015.

11.  Army Regulation 27-10 prescribes the policies and procedures pertaining to administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  It further states:

	b.  The following commanders may impose NJP:

* Companies, troops, and batteries
* Numbered units and detachments
* Missions
* Army elements of unified commands and joint task forces
* Service schools
* Area commands

	c.  A commander's decision whether to file a record of NJP in the performance folder or the restricted folder of a Soldier's OMPF is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted folder.

	d.  For Soldiers in the rank of sergeant and above the original copy of the NJP is sent to the appropriate custodian for filing in the OMPF.  The decision to file this form in the performance or restricted folder of the OMPF will be made by the imposing commander at the time NJP is imposed.

	e.  Applications for removal of NJP from the OMPF based on an error or injustice will be made to the ABCMR.  There must be clear and compelling evidence to support removal of a properly-completed, facially-valid NJP from a Soldier's record by the ABCMR.

12.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF.

	a.  It identifies those documents that are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three folders:  performance, service, or restricted.  It shows an NJP is filed in either the performance or restricted folder of the OMPF as directed in the Record of Proceedings under Article 15, UCMJ.

	b.  It provides that the restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Department of the Army Headquarters selection board proponent.  This regulation also provides that documents in the restricted folder of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his NJP should be removed from the restricted folder of his OMPF because the imposing commander did not have UCMJ authority over him at the time of the misconduct.

2.  The evidence of record confirms the applicant accepted NJP in lieu of trial by court-martial for assaulting and threatening another Soldier.  The imposing commander directed filing the NJP in the restricted folder of his OMPF.

3.  His NJP proceedings were conducted in accordance with law and regulation and the NJP is properly filed in the restricted folder of his OMPF as directed by the imposing commander.

4.  The applicant's argument that the imposing commander did not have the authority to impose the subject NJP is in error.  The governing regulation clearly states that commanders of companies and service schools may impose NJP.  Furthermore, even while the applicant was temporarily attached to the service school, he was still assigned to the recruiting company in Houston.  There is no limitation on imposing action under the UCMJ just because the misconduct occurred at a location distant from the applicant's assigned unit.  The commander of his company imposed the NJP.  There is no error or injustice in what was done concerning the NJP.

5.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  The applicant does not deny assaulting another Soldier.  In the absence of an error or an injustice, there is no valid reason supporting its removal from his records.

6.  In view of the foregoing, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________X___________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130014774



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ABCMR Record of Proceedings (cont)                                         AR20150009042



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